Notch And Bethesda Settle On Scrolls

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Because we, as a species, have allowed our reality to become so ridiculous that people can own the rights to a noun, there has been an ongoing battle between Bethesda and Mojang over the right to use the word “Scrolls” in a game name. Bethesda’s very long running The Elder Scrolls first-person RPG is utterly indistinguishable from Mojang’s card-collecting Scrolls. Wait, is it the other way around? I’m so confused! But the good news is, their lawyers have finished spending each other’s money and there’s an agreement!

Bethesda…wait, sorry, Mojang are going to be able to use the name “Scrolls” so long as they agree to give the trademark to Moj… BethSoft, and agree not to make a game that competes with the Elder series with that name. Which, er, is what they were doing in the first place before two sets of lawyers bought themselves new speedboats and added another wing to their mansions. Good work, trademark law!

But the good news is, Mojang gets to keep calling their game Scrolls, and it’s time for my breakfast.

While the physical scrolls themselves are not terribly relevant, the prophecies that your character fulfills in each of the Elder Scrolls game were written down… guess where. The entire main story line of each of those games is an Elder Scroll, or part of one.

Naming the game after the central plot device makes a lot more sense than after some physical characteristic to me. A game named “Disc” because it came on CD-ROM would not seem clever to me, and if “Scrolls” is intended to pretend that the cards are scrolls then it is a silly name unworthy of fighting over. I am hoping that “Scrolls” refers to a game mechanic of some sort, and has nothing to do with the fact that it is a card game.

Whilst I don’t agree that scrolls is a good name for a card, I also disagree with this passionately knowledgeable defence of TES as you have to buy into the games lore entirely to ever be really aware of what these damn scrolls things really. I seem to have an elder scroll in my pocket in Skyrim, thats the first time its been a plot element rather than a complete contrivance originally intended to add fantasy gravitas to the sprawling ambitions of an action/rpg game. However I do find the defence v.endearing :)

Actually things would work much better if law was not needlessly multiplied so that something everyone is assumed to be competent to understand and abide by doesn’t require a specialist degree course to understand. link to preskoc.cz

I couldn’t tell if it was supposed to be “intellectual property” or was a play on words and was supposed to be “intellectual propriety” (which, by the way, I’m all for, though I’m not sure what it would be. I’m all for propriety, though.).

It’s not that they care about the specific trademark per se; the real reason they fought for this, and the reason that them getting to keep the trademark is part of the settlement, is because a company like Bethesda has to make a public show of vigorously defending their trademarks, even the minor ones that they’d rather not make a fuss over.

The fact is, if they were to have just shrugged and walked away, it would have been a display of weakness, a sign that they weren’t willing to defend themselves against encroachers on intellectual property, and it would embolden every Tom, Dick, and Jane who saw that as tacit approval to push the envelope a little further. So their keeping the trademark is just a face-saving exercise, so if, a few years down the line, someone tries to poach a trademark that’s a little more important, they have precedent in the courts to challenge it.

Plus, if they show that they’re willing to bring an army of lawyers to bear over something even tangential like “Scrolls”, it will raise the cost of trying to pull a fast one for people who actually are trying to poach trademarks in bad faith.

No, they wouldn’t and clearly you don’t know much about trademark or copyright – first of all in the US anyway, it is considered fair use to use a IP in review or parody – so by US law the magica devs were not infringing at all.

The UK doesn’t have special protection, and I’m not sure about the EU/Sweden.
Even then it highly unlikely it wouldn’t be considered infringing, it’s a sodding joke.

The Magicka devs were in no way trying to trademark terms that would weaken a Zenimax property, or creating an IP that could in any way be confused.

Well put. Unfortunately, most people don’t seem to understand what copyright, trademark, patents and intellectual property and how the differ. Thus you wind up with people making all sorts of wild, misinformed assertions.

If Bethesda truly wanted to be jerks about this, they could have refused to settle and let the courts decide it. Fortunately, it’s really best (for all parties and for interpretations of the law) for this to simply be settled out of court the way it was.

A company is only required to defend their trademark if there is an actual likelihood of confusion between the products among consumers – the old “moron in a hurry” test. Since no one is likely to honestly confuse an open world adventure/rpg game with the longwinded title of “The Elder Scrolls IV: Skyrim” and a puzzle/board game/rpg simply titled “Scrolls” (i.e. no one is going to see Scrolls on the store shelf and buy it because they honestly thought it was Skyrim or related to Skyrim in some way) this entire legal scuffle was entirely unnecessary, and should have been laughed out of court if it had gotten that far.

Following independent review it was discovered that Greener’s product was in fact a more distinctly green hue. Chief Justice Otherside ruled that Grass had no case for defamation against Greener, with Greener’s claims of having a greener hue than Grass’s product found to be factual. Grass was ordered to bear Greener’s legal costs. In passing, Otherside CJ noted that “the old saying may in fact have a definitive answer.”

My memory’s a little fuzzy so I can’t remember how the terms differ from what they were before. If they don’t, then perhaps someone in Bethesda management just put their foot down and told the lawyers to stop wasting money?

Every time I see “We need IP reform”, my mind reads it as “I want free shit”. Why is that? That’s the point isn’t it? To “reform” IP so that copyright infringement is legal and we all can get free stuff. Not that we weren’t doing it anyway, of course, but now we need society’s validation. Legal society. We’re an ambitious lot, you see.

@”Every time I see “We need IP reform”, my mind reads it as “I want free shit”. ”
Well, it seems to me you do not think very deeply at all.
While totally scrapping copyright would have the ‘desirable’ effect of making it legal to copy anything and everything, I am sure few of the proponents of IP reform actually imagine that that would be in any way feasible.
However, reducing copyright periods to sane levels and, for a start, making it difficult to sue for rounded corners and other such silliness would be very much to the benefit of all mankind.

From what I remember of secondary school and college lessons about business and product design, BethSoft would have to show that a game covered a similar, specific market or target audience. This might include genre interest, platform and sales region amongst other elements.

Disclaimer: I have forgotten everything I ever learned and flunked the relevant classes/courses.

From my understanding of the situation, Bethesda/Zeni were happy enough for the name Scrolls to be used by Mojang, but it was when Mojang made moves towards trademarking the name (across a range of areas, games, books, merchandise) that they objected. Whether that was because it threatened their “The Elder Scrolls” trademark, or would have hurt them in some way, or if it was just one of those things they had to do (or set a precedent for not defending), or something cooked up by their lawyers, I dunno.

To add to that, the situation was made much worse by Notch. Generally I would think things like this are done behind the scenes and quietly.

Notch opened Bethesda/Zenimax up to a LOT of hate from the community over this by running his mouth about the case. If you looked at communities like The Escapist, or even RPS, there were a lot of anti-Bethesda/Zenimax comments for following what is likely considered procedure. On top of that, Notch constantly came up with ideas like “settle it over Quake Live” which, even if jocular and intended to be not taken seriously, muddied the issue and further made it look bad for Zenimax/Bethesda, who were already embroiled in a lengthy and sometimes-controversial court case with the company that can barely be called Interplay over the Fallout MMO.

I am actually somewhat surprised, albeit pleased, that we have not heard of Zenimax/Bethesda suing Mojang/Notch for damages to their reputation and also to the success of their product due to the misrepresentation and so forth of the court case via Notch.

This is a big non-story, and it only ever became one because of – at the time – the massive fanwankery over Notch and Minecraft, and the fact he opened his mouth.

Y’know what? I’m glad that Notch actually keeps things open and transparent. The games industry keeps silent about SO much, including the budget of games, any legal issues behind the scenes, the technology used, the people involved, etc, etc.

We only just found out a couple of weeks ago that Microsoft charge developers $40,000 to patch their own games. Per patch. Why? Because Tim Schaefer had the nerve to talk openly about it. It was a secret that nobody had ever talked about until that point.

If more companies were transparent about this stupid sodding shite that happens solely due to the inanity of commercial consensus and logic then it would happen less, as this stuff never bears up to scrutiny from outside of the myopic isolation of the trademark world.

We should never be disappointed that someone has been public or had a sense of humor about something so trivial and utterly impersonal as this. If Beth got bad publicity from it there was one foolproof way of never incurring such a public response…and the reluctance to be anything like that reasonable is why these discussions/threats/ludicrous events are generally kept quiet. Like the MS patching thing mentioned above.

theblazeuk, defending yourself from someone trying to trademark a part of the title of your extremely valuable established games series, for another fantasy game/ series, seems to stand up to scrutiny just fine.
Notch making it into a popularity contest? Just stupid. People like you actually buying into it? Inane.

Really, he made a ridiculous offer to settle a ridiculous lawsuit with a game of Quake, that’s all there is to it. I love how he catches a lot of flak from the “gaming establishment” over things that are taboo to talk about, or points out the silly nature of things like obsessing over piracy, or the name of a game that only an idiot would think has anything to do with The Elder Scrolls series.

I really don’t understand your apparent dislike of the man, he is on the forefront of changing the industry. He is actually using his power for good purposes…for example, if it hadn’t been for him, I guarantee Tim Schafers kickstarter would not have blown up the way it did, and he gives a lot of money to other indie developers and does charity work on a regular basis. So kindly come down off your high horse and give the man some respect.

You might not know this but in US, failure to defend a trademark can result in the loss of that trademark (see: Aspirin). For Bethesda to keep their trademark “Elder Scrolls” and to protect themselves from being sued for copyright infringement by Notch (and the potential loss of the rights to the Elder Scrolls franchise) should he get the rights to Scrolls, they had to challenge his trademark.

So regardless of how much you love to suck Notch’s dick, he acted like an idiot telling a multi-million dollar corporation to fight it out over Quake and then complicated things by talking on about the lawsuit. The issue being that Bethesda wasn’t going to let Notch get the trademark and any settlement which didn’t include that wasn’t going to fly. Bethesda would not let him or anyone else in effect sink their company over a game of Quake and just making the offer in the first place is stupid, childish, and shows a lack of business savvy.

” Zenimax/Bethesda suing Mojang/Notch for damages to their reputation and also to the success of their product due to the misrepresentation and so forth of the court case via Notch.” would be very similar to suicide as far as public opinion is concerned.

Ya see the thing is, legally, having a trademark on a word does not actually mean you “own” it. You have some right to restrict other people’s usage of it in very specific commercial ways in specific markets, but that’s it.

Unfortunately most big corporations prefer to believe they do, in fact, “own” any word they have trademarked and thus should have absolute control over it in any possible situation, and it’s hard to argue with them when they have mountains of money and armies of lawyers.

Perhaps Mojang wasn’t trying to grab the trademark for Scrolls for some nefarious money-making scheme but was, in fact, trying to cover their rear ends and the integrity of the brand the company was creating. Perhaps, as so many posit Bethesda were doing, Mojang were just following good business practice.

Or perhaps both sides were trying to make a quick buck by working the system because they’re all greedy feckers.

I would, I think, agree with this sentiment. While I would have loved to see the dispute settled over a game of Quake 3, it’s probably pretty unrealistic. The process may suck, and it may be Notch’s first time going through it, but that doesn’t make Bethesda into the big bad wolf. Maybe the laws are broken. That doesn’t make Bethesda’s legal team a bunch of bastards (maybe they are, maybe they aren’t). Notch isn’t faultless, either. He made some pretty impressively hurtful claims about Yogscast right after MineCon, many of which turned out to be outright false. It doesn’t mean he’s evil, it means he’s human, just like the lawyers on Bethesda’s legal team, and the people involved in creating and ratifying intellectual property law.

See also: The Douglas Adams origin story for Earth. I bet those lawyers and phone booth cleaners probably STILL believe that the other, less important people are coming in on the ships right behind them.
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Any…day…now…

Far be it for me to stick up for anyone, but if it weren’t for lawyers to mediate such disputes Zenimax Media (number of employees: 1000+) would simply have come over and twatted Mojang (employees: 20-odd?) with a big hammer.

John — I read RPS regularly and have a huge amount of respect for the views of you and your colleagues. In fact, RPS is the source I prize highest for insight into the pc gaming which I love. However, as a trade mark lawyer I find the tone of your article really quite unpleasant.

Irrespective of the rights and wrongs of this particular dispute, trade mark law serves a legitimate purpose in helping businesses and consumers accurately identify the commercial origin of the products they choose to buy — it is not about ‘owning the rights in a noun’ as you put it. If you have criticisms of trade mark law (and I certainly do), then research the area, try to understand its purposes, and frame your criticisms appropriately. Otherwise, stick to reporting the dispute — don’t presume to dismiss the area of law by means of a simplistic quip.

Second, the underlying implication that those of us in this field are basically lining our pockets at our client’s expense by creating conflict between businesses is very offensive. The trade mark lawyers I know (and I know lots) are almost all decent, honest, hardworking and committed to the best interests of their client. I also can’t think of many trade mark lawyers with a mansion or speedboat.

(incidentally average salary for a solicitor in the UK was in the region of £26k, last time I checked)

I can’t be bothered trying to explain why some of us are rather mythed by trademarking of the word ‘Scrolls’ and why we thus make generalisations about trademark lawyers in general. If you’re a trademark lawyer, jhng, then I would have thought you would understand…

“I can’t be bothered trying to explain why some of us are rather mythed by [grievance of injured party] and why we thus make generalisations about [injured party] in general. If you’re a [member of injured party], then I would have thought you would understand…

Really? This is exactly the kind of attitude we are supposed to be fighting against!

I didn’t comment on the dispute (which sounds like it was all a storm in a teacup anyway), I commented on the tone of John’s article.

Maybe I overreacted, but to me it sounded like the equivalent of the holier-than-thou, ill-informed, non-gamer saying: “game developers are busy making money by turning our kids into killers”, which (if I was a game developer) I might also find offensive if it came from someone, like John Walker, whose opinion I have a high regard for.

EDIT: Since the ‘request deletion’ button has appeared, I have to recognise that deletion doesn’t always mean moderation. It seems better to retract the follwing comment. Although I’d question why a request deletion button even exists when deleting things completely screws up the reply system…
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Hm. I thought that it was acceptable to be critical of RPS posts so long as it is civil and reasonable, and unacceptable to be a bastard towards another commenter. Yet the comment that’s critical of John’s article gets flattened while the one suggesting that an RPS commenter is a scumfucking arsehole and should be shot gets to stay.

right, there’s just no way jheng could have requested for deletion of his comment. and the fact that some people here take that last bit from trjps comment at face value is really telling because – hey, when you’ve got a strong stance against civilized stuff like trademark and don’t want to engage in a calm argument about the specifics when we all know that calm arguments have always solved all the fucked up shit that happened on the way to becoming civilized, well, in that case you must be a barbarian only able to express himself through means of slaughter, murder and maybe farting.

btw, how likely is it, do you think, that trjp just provocatively reacted to stuff jheng suggested about others? unpossible surely?

Was there to read Jhng’s comments. There were three that I saw, and all were completely civil and carefully worded. Basically, after complementing John on being a respected news source, Jhng called John out on his tone misrepresenting the profession of trademark law. He/she said (and I paraphrase) “I and others of my profession work hard for our clients who have very vested interests in protecting their IP, large or small” and “The idea we all own mansions and powerboats is an insulting misrepresentation of the hard working people in my profession.”

And John, you really should’ve been called out on that. You’re the Golden Rule guy, the John Walker who called out Blizzard on not censoring homosexual slurs at Blizzcon. You’ve basically just called Catwoman a bitch with this article. Perhaps not to the same degree but by the same mechanism.

I don’t know much of anything about climatology, chemistry, physics, or any of that other hard science stuff, but I’ve been told that many experts believe that people who don’t believe them are bought and paid for, therefore climate change is obviously primarily driven by dirty, modern, greedy mankind.

There is currently a conflict raging inside my mind. The logical part wants me to believe that this person has a point and IP law does have a point too, a point much more noble than owning rights to nouns (for example, making sure that an artist or an inventor can get food in exchange for his art or inventing). And the irrational part that WANTS BLOOD demands me to sidestep all logic, joining the choir that’s dissing the lawyers and not caring about any excuses they might have. What to do, what to do…

The problem with trademarks is that they’re utterly ineffective in their own right and only become useful when you can afford to pay lawyers to defend them for you (it’s arguable that you don’t even need a trademark to do this)

That process is so convoluted that it costs a fortune and so the whole system simply descends into a “who’s got the most money” argument – which is, frankly, pathetic.

I thus concur with anyone who points at lawyers and says “leeches” because that’s exactly what they are. The system isn’t going to be changed from without – people with any level of decency would change it from within, but in this case it appears no such person has every found themselves in the position to do it.

I also don’t give a fuck what the average salary of a solicitor is – when you’ve had to deal with the scumfucking arseholes you’ll realise that they exist purely to invent costs for things no other rational creature could ever even consider. I’d personally shoot the fucking lot of them – in front of their families of course :)

Actually things would work much better if law was not needlessly multiplied so that something everyone is assumed to be competent to understand and abide by doesn’t require a specialist degree course to understand.

For the UK trademark rules and regulations is pretty straight forward and clear. I am assuming that these rules are generally consistent between countries.

For the UK a trademark is used to prevent a company or person from using X( logo, title, etc ). You trademark X into certain classes, a class defines what area X will be used in. When you are also registering a trademark you must also define what you are using the trademark for.

Registering a trademark in the UK can take a few weeks. When registering a trademark a person at the IP office examines your trademark and checks to see if there is any potential conflicts with other already registered trademarks. That person then informs you of the potential conflicts and asks if you still want to register the mark.

If you still wish to register for a trademark, the person is obligated to inform any of the people who they believe your trademark infringes. The other people have 2 months to “threaten to oppose” your trademark. If anyone does threaten an additional 1 month is added to the oppose period. If no one opposes then they cannot oppose you later down the line.

The reason why a company will oppose another similar trademark is due to a lack of description on how your trademark will be used. For instance, if you describe how your trademark will be used as “To be used in computer video games.” If the other company does not oppose that, then they leave themselves open to being sued and prevented from using their trademark by you.

You’ll probably find that this was resolved through a couple of e-mails and an amendment to Notch’s trademark.

In many cases it is not the trademarking of the word ‘scrolls’ that is the problem it is how it has been described to be used that is most likely the issue.

Nice post, thanks for the insight into the process. Sadly this qualifies more as journalism than John original piece above.

Wait I’m meant to berate & belittle you for taking the time to explain the intricacies of the system right? I guess in the language of the internet I am not doing this right or words to that effect. I’m sure someone will be along shortly to set the record straight as they wasted no time do so in jhng’s post above.

“I am assuming that these rules are generally consistent between countries.”

I so wish this was the case…

Good summary of the UK position, though, and as you say we sort out hundreds of these sorts of disputes through a bit of negotiation and a few email exchanges. In fact, it is very unusual that a matter like the Scrolls one ever even comes into the public view.

“The reason why a company will oppose another similar trademark is due to a lack of description on how your trademark will be used. For instance, if you describe how your trademark will be used as “To be used in computer video games.””

This is very true. A few years ago we patented a software algorithm we came up with at work (not a trademark, but similar tomfoolery applies). The patent lawyer insisted that even though we had come up with something very specific, we had to write the patent application as non-specifically as possible. This was to increase the value of the patent when we sold the rights to somebody, and also to make it harder for people to figure out the technology from the patent description.

I also guess that it was designed with patent trolling in mind – if someone else came up with something similar, patented it and made a bunch of money out of it, we could then swoop in and say “Gotcha, pay up!”

It’s not much of an exaggeration to say that there is a patent cold war going on in Engineering and Technology right now. With patents being created, bought, traded or flat out stolen and stockpiled by the large tech companies to ensure that any company trying to sue them over patent issues will suffer a case of mutually assured destruction.

Everyone knows that patents are fucking worthless – china doesn’t care, individuals and small business can in no way afford to defend them, and big companies are all stockpiling them like the USA stockpiled nukes in the 50s and 60s.

The only use for patents right now is for large western companies (with a stockpile) to bully smaller western companies without a army of payroll lawyers. Most Electrical Engineers I know don’t bother with patents, they simply accept that their shit will be stolen and do what they can to slow the process down (filing down component codes, hiding components, or putting in fake components – various other methods.
It’s one of the reason microprocessors are so used even when simpler chips would do the job, and maybe better – you can encrypt MCU.

I know a couple of guys who’ve had threat letters from companies to stop production on certain products, that if challenged would be a 99% chance of winning (because only a grade A moron would ever think they were in any way related), but there is no way they can risk a loss – so they’ve folded, redesigned or re-branded.

Don’t forget stifling competition and innovation by refusing to license out an idea. Why do only Apple laptops have magsafe power connectors? Because other manufactuers simply cannot buy permission to do the same.

There’s a justifiable argument down there somewhere for making sure money spent on R&D translates to competative advantage for at least some time (else nobody would ever do it), but the actual patent and trademark system we’ve got in the Western world is absolutely awful.

Because we, as a species, have allowed our reality to become so ridiculous that people can own the rights to a noun

That is not really how trademark law works in the US. They don’t unilaterally own the rights to a noun. Trademarks include a specified scope, as you can see on any trademarks official documentation and on the website. The person applying for the trademark has to specifically define in what areas that are applying for a trademark and the trademark will ONLY apply to those areas.

Here (link to tess2.uspto.gov) is the page for the SCROLLS trademark Mojang was applying for. Pretty standard scope for a video game, saying they have the rights to use it as branding in most entertainment forms and merchandising .

Again, the key here is that trademarks have a defined scope, only apply within that scope, and only apply to branding really. They don’t “own the rights to a noun” they currently hold the rights to brand their product as that noun in a defined market. I’m all for copyright and trademark reform but it very much annoys me when people don’t even bother to learn how the current systems even work before complaining about them.

i don’t get it why does majong want to acquire the rights to the elder scrolls they’re a fictional object from a video game does he really think he can use them to rewrite the past or whatever they do?